Appointment of Class-IV employees without resorting to the procedure through Employment Exchange

Citation Name : 2018 PLC(CS)N 72 PESHAWAR-HIGH-COURT
Side Appellant : ZAHID KHAN
Side Opponent : KHYBER TEACHING HOSPITAL, PESHAWAR
R. 10(2)---Appointment of Class-IV employees without resorting to the procedure through Employment Exchange---Contention of petitioners was that they being permanent residents of concerned district were entitled for appointment on merits but department had made appointments of respondents with mala fide intention---Validity---Nothing was on record that authorities had made requisition of available candidates for their appointment from Employment Exchange concerned which was a mandatory requirement---Respondents were appointed from other districts on the basis of nepotism and favouritism in presence of eligible candidates within the district---Eligible candidates were to be recommended by Employment Exchange on the basis of seniority with regard to date of registration and age---High Court directed the authorities to adjust the petitioners as they were eligible, competent and fit for the posts in question---Provincial Government was directed to implement Policy of High Court (Peshawar) as practised for the appointment of Class-IV employees in the entire province in all departments---Constitutional petition was allowed accordingly.

Citation Name : 2018 PLC(CS) 152 LAHORE-HIGH-COURT-LAHORE
Side Appellant : PROVINCE OF PUNJAB
Side Opponent : Dr. MUHAMMAD ZAFAR IQBAL
S. 7---Change of cadre---Appointment by transfer---seniority , determination of---Scope---Respondents without any objection accepted the terms and conditions of their appointment orders wherein it was clearly mentioned that the order should be prospective in nature and they would have no right or entitlement to any back benefits of past in terms of seniority ---Perusal of notification, which initiated the process of respondents' appointment by transfer, showed that seniority of the respondents (in their previous cadre) and similarly placed persons shall not be counted for the purposes of seniority and they shall be placed at the bottom of the new cadre---Bare reading of the appointment letters of the respondents vividly showed that they were appointed by transfer and the said letters had been issued with certain terms and conditions of their appointment---Respondents accepted the terms and conditions and thereafter joined the respective services without any objection---Respondents were appointed through transfer and retrospective effect could not be given to their appointments as per law, because they were appointed by transfer and not promoted---Under S.7 of the Punjab Civil Servants Act, 1974 the seniority in post service of cadre shall be determined in prescribed manner and take effect from the date of regular appointment to the post---Appeal was allowed accordingly.

Citation Name : 2018 PLC(CS) 152 LAHORE-HIGH-COURT-LAHORE
Side Appellant : PROVINCE OF PUNJAB
Side Opponent : Dr. MUHAMMAD ZAFAR IQBAL
seniority ---Change of cadre---Employees who opted to change cadre shall be placed at the bottom of already serving employees.

Citation Name : 2018 PLC(CS) 152 LAHORE-HIGH-COURT-LAHORE
Side Appellant : PROVINCE OF PUNJAB
Side Opponent : Dr. MUHAMMAD ZAFAR IQBAL
seniority ---Estoppel---Employees had challenged their appointment after about one year of their appointments---Employees having accepted the terms and conditions of their appointment letters could not at later stage, deviate from their own acceptance; they having failed to show that they had challenged the vires of notification which affected their seniority , principle of estoppel applied to their cases---Appeal was allowed accordingly.

Citation Name : 2018 PLC(CS)N 76 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD AWAIS
Side Opponent : D.C.O.
Para. 13(c)---Advertisement for appointment of Ward Servant (PBS-1)---seniority in age, principle of---Applicability---Petitioner was better qualified against the respondent---Petitioner-candidate who was a disabled person, was awarded lowest marks in interview---Grand total marks awarded to the petitioner were equal to the candidate who was appointed---Petitioner was younger than the respondent---Candidate who was senior in age was to be given preference in case of tie between the two or more candidates---Determination of merit had to be based on the principle of seniority in age where candidates had secured equal marks---Age was prime consideration in case of tie between candidate of equal merit notwithstanding the higher educational qualification---Constitutional petition was dismissed in circumstances.

Citation Name : 2018 PLC(CS) 975 KARACHI-HIGH-COURT-SINDH
Side Appellant : SHARIQ-UL-HAQ
Side Opponent : PAKISTAN INTERNATIONAL AIRLINES CORPORATION LIMITED
Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration, injunction and damages---Interim injunction, grant of---Master and servant, relationship of---Scope---Plaintiffs were pilots who were employees of Pakistan International Airline Corporation---Grievance of plaintiffs was that Corporation had not followed Memorandum of Understanding (MoU) between Corporation and their representative association with regards to procedure of promotion---Plea raised by Corporation was that relationship between the parties was that of master and servant and plaintiffs could only sue for damages but could not seek declaration---Validity---Two genris of lawsuits encompassing relationship of master and servant existed---One scenario could lead to claim of dismissed or terminated employee who approached court of law for reinstatement or in alternate, award of damages/compensation against his wrongful dismissal/termination in which proceedings, master could say that he was prepared to pay damages for breach of contract of service but would not accept services of servant---Other genris in same relationship was the case where an employee though in service and performing his duty satisfactorily but he was denied salary/wages and some other benefits payable to him during service---In such distinct and discreet class of cases, all such employees who were neither covered under definition of 'workers' or 'workmen' so that they could approach Labour Courts or NIRC, nor they were civil servants to move Service Tribunal nor they could file Constitutional petition under Art.199 of the Constitution, due to lack and non-existence of statutory rules of service, so only remedy was left with such employees was to file civil suit for satisfaction of their claims accrued to them during service including damages for loss sustained due to non-payment or refusal/denial of such service benefits by employer without any lawful justification---High Court directed parties for negotiation for working out a methodology in terms of MoU---High Court further directed management of Pakistan International Airline Corporation not to compel plaintiffs to join disputed training courses for promotion and that plaintiffs would continue to perform their duties as per roster till such time outcome of negotiation was intimated---High Court directed the Corporation not to disturb actual seniority of plaintiffs in their present cadre and their flying licenses would be regulated in accordance with law---Application was disposed of accordingly.

Citation Name : 2018 PLC(CS) 676 KARACHI-HIGH-COURT-SINDH
Side Appellant : GHULAM SHABBIR
Side Opponent : FEDERATION OF PAKISTAN through Secretary Petroleum
Arts. 187(2) & 199---Civil service---Matter pertained to back benefits of employee---Judgment of Supreme Court---Implementation of---Procedure---Constitutional petition under Art.199 of the Constitution---Scope---High Court could exercise its jurisdiction for implementation of judgment of the Supreme Court---Petitioners approached the Supreme Court by filing original criminal misc. application for initiating contempt proceedings against the respondents and filed constitutional petition before High Court---Validity---Petitioners could not be permitted to invoke "both" the jurisdictions at the same time---Petitioners could pursue remedy before the Supreme Court and on direction from the Supreme Court could approach the High Court---Petitioners after having filed the original criminal misc. application had abated such remedy on their own and had approached the High Court by filing constitutional petition under Art.199 of the Constitution---Controversy in the case had been dealt with by the Supreme Court on merits---Nothing was available for the petitioners to agitate before the High Court in circumstances---Supreme Court had concluded that back benefits would not ipso facto include inter-se seniority from the date of granting the said benefits---High Court under limited jurisdiction in terms of Art.187(2) of the Constitution could not interpret the judgment of Supreme Court in any contrary manner which had already been interpreted---Present Constitutional petition was not filed with clean hands by the pettioners which ought to have been withdrawn---Petitioners had failed to make out a case for exercise of discretion so vested in High Court under Art.187(2) of the Constitution---Constitutional petition was dismissed with costs in circumstances.